Madison’s Privacy Blind Spot

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CreditMike McQuade

By Jeffrey Rosen

Jan. 18, 2014

IN his opinion last month regarding the constitutionality of the National Security Agency’s phone-data collection program, Judge Richard Leon wrote that “James Madison, who cautioned us to beware of ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”

Judge Leon isn’t the only legal mind these days to view Madison as a libertarian icon. Justice Antonin Scalia invoked Madison last spring in his memorable dissent from a Supreme Court opinion upholding the government’s right to collect DNA swabs from suspects.

Expect to hear a lot more about Madison in the coming year, as the issues surrounding the N.S.A. move toward what Justice Scalia has said will be a likely review by the Supreme Court. For that reason, it is important to explore what Madison does and doesn’t offer to this debate.

The apotheosis of Madison as an emblem for opposition to mass surveillance is welcome. But the reasoning behind his beliefs has been misunderstood. He believed that the preservation of people’s “different and unequal faculties of acquiring property” was “the first object of government,” but that a too-powerful government could undermine that goal. He was, therefore, more concerned with abuses of legislative and executive power than of unregulated commercial power.

As a result, the Bill of Rights, which he came to champion, constrains only government actors, not private ones. It applies to the government, not Google. Now that Google and AT&T can track us more closely than any N.S.A. agent, it appears that the Madisonian Constitution may be inadequate to defend our privacy and dignity in the 21st century.

Soon after Judge Leon issued his ruling, Judge William H. Pauley III, a federal district judge in New York, reached the opposite conclusion, upholding the N.S.A. spying program in part by noting that the founders approved of secrecy.

The debate between Judge Leon and Judge Pauley echoes the one between Federalists and Anti-Federalists about the proper scope of government, one Madison, a moderate for his time, so effectively straddled.

In the revolutionary period, the galvanizing examples of government overreach were the “general warrants” and “writs of assistance” that allowed the king’s agents “to break open Doors, Chests, Trunks, and other Packages,” without specifying either the goods to be seized or the houses to be searched.

In a famous attack on such writs in 1761, the lawyer James Otis said, “It is a power that places the liberty of every man in the hands of every petty officer.” To avoid the dangers of an overreaching central government, in 1777 the Continental Congress created a weak union governed by the Articles of Confederation.

Madison, a moderate Federalist, lamented the inability of the newly created government to curb the occasional excesses of economic populism, such as Shays’ Rebellion in western Massachusetts, where debtors attempted to take over the local government.

Madison and others gathered in Philadelphia in 1787 to create a stronger, but still limited, federal government. In response to demands by Anti-Federalists for amendments that protect individual liberty against the government, Madison introduced the Bill of Rights in 1789.

Unable to foresee the Leviathan national security state, Madison, in his Bill of Rights, was more concerned with abuses by Congress than the executive branch. But he had an even greater blind spot for abuses by the private sector, because he was focused on protecting the property rights of the few against the tyranny of the many.

For example, economically populist Anti-Federalists, including Thomas Jefferson, backed an amendment to prohibit Congress from granting monopolies or setting up “any company with exclusive advantages of commerce.” Madison, who also mistrusted monopolies, was less convinced that they should be “wholly renounced.” He responded to Jefferson that “monopolies are sacrifices of the many to the few,” and in America, where the power rested with the people, “it is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”

There is, therefore, a tension in modern libertarian appreciations of Madison. They exaggerate his opposition to abuse of federal power and ignore his failure to anticipate abuse of corporate power.

Today, the foes of corporate monopoly power include those on the Tea Party Right and the Occupy Wall Street left. But on the right, the Madisonian devotion to property rights, and Jeffersonian suspicion of regulation, are so strong that the same principled libertarians who oppose N.S.A. data collection shrink from efforts to regulate Google or AT&T.

In his speech on intelligence reform on Friday, President Obama called on Attorney General Eric H. Holder Jr. to develop options for how the bulk telephone data collection program could continue without the metadata being held by the government itself. But telecom companies have resisted being the repository for the data, and an anti-regulatory Congress is unlikely to require them to do so or to impose meaningful limits on what they can do with the data they hold.

As a result, Internet service providers and telecoms are constrained neither by the Constitution nor, in meaningful ways, by federal privacy statutes. And they are free to engage in just the kind of intrusive surveillance that Judge Leon insisted was an unreasonable search and seizure when conducted by the N.S.A.

In practice, the neo-Madisonian distinction between surveillance by the government and surveillance by Google makes little sense. It is true that, as Judge Pauley concluded, “People voluntarily surrender personal and seemingly private information to trans-national corporations which exploit that data for profit. Few think twice about it.”

But why? Why is it O.K. for AT&T to know about our political, religious and sexual associations, but not the government?

You might say there is a difference between political and cultural information. If the government knows you attended a Rand Paul rally, it could punish you by auditing your tax returns. But if AT&T knows, it might send you an ad for a Tea Party Tax Day protest.

That distinction is unconvincing. Once data is collected by private parties, the government will inevitably demand access.

More fundamentally, continuously tracking my location, whether by the government or AT&T, is an affront to my dignity. When every step I take on- and off-line is recorded, so an algorithm can predict if I am a potential terrorist or a potential customer, I am being objectified and stereotyped, rather than treated as an individual, worthy of equal concern and respect.

Justice Louis Brandeis, the greatest defender of privacy in the 20th century, recognized this when he equated “the right to be let alone” with offenses against honor and dignity.

But he also lamented that American law, unlike European law, was not historically concerned with offenses against what the Romans called honor and what in more modern terms we call dignity. European laws constrain private companies from sharing and collecting personal data far more than American laws do, largely because of the legacy of Madisonian ideas of individual freedom, which focus on liberty rather than dignity.

What Americans may now need is a constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.

Perhaps even Madison, who unsuccessfully proposed a preamble to the Constitution declaring “that all power is originally rested in, and consequently derived from the people,” and that all people have basic natural rights, including “the enjoyment of life and liberty” and the right of “pursuing and obtaining happiness and safety,” might have realized that our rights to enjoy liberty, and to obtain happiness and safety at the same time, are threatened as much by corporate as government surveillance.

In any event, it is clear that, to keep us secure against the 21st-century version of the general warrants that so alarmed Madison and the other founders, America needs a robust debate about amending the Constitution to meet the exigencies of our electronic age.